Distinguishing Bush from Lincoln, Jefferson and FDR

Jonathan Miller jmiller at swlaw.edu
Tue Jul 10 13:44:08 PDT 2007

The Emancipation Proclamation would certainly qualify for your first point -- effectively disregarding the Fugitive  Slave Law as well as existing Supreme Court precedent on property rights.  I would argue that what makes the Civil War distinguishable is the nature of the conflict, with national survival clearly at stake.

Jonathan Miller


De: conlawprof-bounces at lists.ucla.edu en nombre de Marty Lederman
Enviado el: mar 10/07/2007 11:08
Para: Sanford Levinson; curtism at bellsouth.net; isomin at gmu.edu
CC: CONLAWPROF at lists.ucla.edu
Asunto: Distinguishing Bush from Lincoln, Jefferson and FDR

It's a bit off-topic for the thread, but just so as to clarify Sandy's reference to me:
Lincoln and Roosevelt certainly did at times take fairly unorthodox views of the law in order to achieve what they thought necessary (and Jefferson ignored his own best judgment of the constitutionality of the Louisiana Purchase in favor of the dominant view).  The two things that strike as as very different about the Bush Administration are:
(i) the assertion of a strong, at times unbounded, power to disregard statutory and treaty-based limits on Commander-in-Chief authority (along with other unorthodox and uncompromising assertions of Article II prerogatives) -- I'd greatly appreciate any examples of FRD or Lincoln professing any Commander-in-Chief or "foreign affairs" or "emergency" power to disregard statutes and treaties, apart from Roosevelt's bluster about the Price Control Act; and 
(ii) more often than not, adopting unorthodox legal views in secret, all the while continuing to profess standard-issue legal fidelity in public (e.g., "We never torture."), such that none of the ordinary checks and balances can operate (whereas Lincoln and FDR announced and defended their unorthodox views in broad daylight, and conceded that Congress and/or the courts would be the ultimate arbiters).  
One still might think that Lincoln's and FDR's deviations from "best" understandings of the law are less defensible than Bush's, for whatever reason (e.g., the stakes of the questions; the plausibility of the legal conclusions) -- my point is simply that what's happening in this Administration is distinguishable in important respects.

	----- Original Message ----- 
	From: Sanford Levinson <mailto:SLevinson at law.utexas.edu>  
	To: curtism at bellsouth.net ; isomin at gmu.edu 
	Cc: CONLAWPROF at lists.ucla.edu 
	Sent: Tuesday, July 10, 2007 11:47 AM
	Subject: Re: RE: RE: Why impose a course on constitutional law on our students?

	As everyone on this list knows (perhaps all too well), I loathe and despise the Bush Administration.  That being said, a major purpose of my constitutional law course, which begins with the Philadelphians ruthless disregard of both their limited congressional mandate and, more importantly, Article XIII, is to address the central reality that many of our "greatest leaders," i.e., the ones we build monuments to, played fast and loose with what might have been thought to be the "best" understandings of the law.  So any attack on Bush must take Jefferson, Lincoln, and Roosevelt (for starters) into account.  Marty Ledewrman has argued very well that these presidents can be distinguished on other than straight political grounds, but the real point is that one can't have the conversation at all without immersion in the relevant history for which most Supreme Court opinions are irrelevant or simply inadequate.  So what do we omit in order to address the dead presidents?  My own answer, of course, is Marbury (among others).  Or do we try to discuss the issues posed by the Bush Administration ahistorically (or, what is much the same thing, by perfunctory reference to a Federalist Paper or two)?



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